By Daniela Kocis Fitzgerald, Director of the HR Dept Fingal
What is a workplace investigation?
A workplace investigation is an independent and unbiased “fact finding mission” into a particular issue in the workplace. The aim of an investigation should be to gather evidence, establish facts and determine if the matter should progress to a formal process. The investigation should not make findings and determine sanctions.
When would an investigation be necessary?
There are different instances when an Organisation may choose to initiate an investigation:
- When an accident or incident has occurred.
- When a complaint against an employee has been made in relation to conduct or performance.
- When a complaint has been received from an employee/client/third party in respect of an employee of the company.
- When there has been a complaint of bullying, harassment or sexual harassment.
Role of the Investigator
The appointed investigator should conduct the investigation with impartiality, integrity, fairness and respect and report their findings to the organisation, as outlined in the agreed Terms of Reference.
Risks involved with investigations
A poorly conducted investigation could have significant risks and such mistakes could expose the company to legal, financial and reputational risks. Therefore, it is imperative that the appointed investigator has had training and understands the process.
There are a few key mistakes that can often be made during an internal investigation, which can include:
- Absence or poorly drafted Terms of reference.
- Poor planning.
- Asking leading questions.
- Issuing a sanction.
- Failure to establish a process that can be perceived as non-bias.
- Delay in starting the investigation.
- Absence of a clear policy.
Unfortunately, a flawed investigation could jeopardise the whole process if the WRC or the Labour court would find that the process was unfair, and an investigation report compiled in unfair circumstances could negatively affect the outcome of a potential claim.
The EAT has consistently stated in recent years that a flawed investigation process is enough to render any subsequent dismissal unfair and may also justify an employee resigning and claiming unfair dismissal.
- Ensure the Investigation Officer is suitable.
- Suspend the employee if gross misconduct.
- Ask open ended questions.
- Seek to confine the investigation to taking statements.
- Interview any potential witnesses.
- Identify what company policies are under consideration.
- Ensure the investigation report simply states facts.
- Specify if the matter should progress to a disciplinary process.
- Offer the employee the right to comment on a report.
- Do consider language limitations of the employee is non-national.
- Delay the process.
- Don’t simply exclude representation because it is not in your policy. If gross misconduct is the potential outcome, offer the right to representation from the investigation stage.
- Ask closed or leading questions.
- Make findings of guilt.
- Don’t exclude any evidence.
- Approach a “one size fits all” approach to investigation procedures.
Recent Case Law
A recent case has resulted in changes to how investigations should be undertaken should an Employee’s employment be deemed ‘at risk’ of termination.
This case of Michael Lyons V Longford Westmeath Education and Training Board involved an application for judicial review. The applicant was notified in 2015 that a complaint of workplace bullying had been made against him by a colleague. The applicant’s principal had been aware of the alleged incidents and complaints since 2008. An investigation into these complaints was accordingly launched as per the industrial relations procedure.
These investigations were carried out by an independent company of investigators. Following their investigations, the investigators upheld four specific instances of bullying. At no point in the investigation was the applicant permitted to cross-examine or challenge his accuser. However, he was given 15 working days to appeal the decision, but his appeal was rejected.
The applicant was required to attend a Stage 4 Disciplinary Meeting to determine the appropriate disciplinary action in his case. The applicant’s solicitors subsequently wrote to the respondents objecting to this course of action.
The court held that the failure to allow legal representation, on behalf of the client, at the meeting was a breach of his constitutional rights and the refusal to allow cross-examination was a breach of fair procedures. The court held that the investigation required these as a matter of law and fair procedures as an individual whose job is at stake must be allowed challenge and cross-examine evidence. The summoning of the applicant to the Stage 4 disciplinary meeting was accordingly set aside as it was not founded on a constitutionally sound investigative process.
What does this mean for Organisations?
Employers who are considering completing an internal investigation should be aware of the Lyons case, but they should also understand that the decision on this case was based on its own facts. Two further decisions of the High Court on the issue of fair procedures during investigations were issued shortly after the Lyons decision. They do not refer to the Lyons case, but they do reinforce the generally accepted principle that fair procedures do not apply in full at the preliminary investigation stage, as long as the investigation is not the final decision.
It really does depend on a case by case basis if legal representation would be appropriate at the investigation stage. If an employee is at risk of dismissal and has asked for legal representation, this should be considered in light of the Lyons case.
The investigation Officer should always ensure that the employee was made aware of all allegations, is allowed to respond to any allegations being made against him/her, is allowed to be represented. Impartiality of the investigation officer is also key.